November 30, 2022

Section 14 and 15 of the Evidence Act

Improperly Obtained Evidence (Illegally Obtained Evidence) #

SECTION 14  #

Evidence obtained

(a) improperly or in contravention of a law; or

(b) in consequence of an impropriety or of a contravention of a law.

shall be admissible unless the court is of the opinion that the desirability of’ admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained.

SECTION 15 #

For the purposes of section 14, the matters that the court shall take into account include-

(a) the probative value of the evidence;

(b) the importance of the evidence in the proceeding;

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;

(d) the gravity of the impropriety or contravention;

(c) whether the impropriety or contravention was deliberate or reckless.

(f) whether any other proceeding (whether or not in a court) has been or is likely 10 be taken in relation to the impropriety or contravention; and

(g) the difficulty, if any, of obtaining the evidence without impropriety or contravention of law.

Explanatory and Practice Notes on Illegally Obtained Evidence in Nigeria #

It is noteworthy that the mere fact that a piece of evidence was illegally or improperly obtained does not ipso facto affect the admissibility of the evidence and render it inadmissible. Put simply, illegally or improperly obtained evidence is admissible. The prevailing judicial persuasion in our jurisdiction is that the relevancy of the document trumps and in fact dethrones any overriding and scathing effect that the impropriety or illegality of its ‘attainment’ may have. This is the clear import of Section 14 of the Evidence Act 2011.

The Court of Appeal held in TIMOTHY & ANOR v. OKPEIN & ORS (2018) LPELR-44182(CA) as follows; “In determining the admissibility of evidence, the Court will not consider how it was obtained; rather the Court will take into consideration whether what is admitted is relevant to the issues being tried. See Igbinovia V. The State (1981) 2 SC 5. In Elias -V- Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214, this Court held that in determining admissibility of evidence, “it is the relevancy of the evidence that is important and not how the evidence was obtained.” (Per TOBI JSC (P. 12 paragraphs C – E)” Per SANGA, J.C.A. (Pp. 43-44, Paras. E-E). see Kaine Agary: Improperly obtained evidence.

See the cases of Torti v Ukpabi (1984) 1 All SCNLR 214; Sadau v The State, Haruna v AG  Fed, Gaji v State, Igbinovia v State

Remember that Section 15 of the Evidence Act goes on further to give detail of what the Court should consider in deciding whether or not to exercise its discretion for or against the admission of the improperly or illegally obtained evidence.  

In effect and at the risk of being repetitive, improperly or illegally obtained evidence is generally admissible unless precluded by the qualification under the Evidence Act. Thus, the Court is by the combined provisions of Sections 14 and 15 of the Act now empowered to weigh the desirability of admitting such illegally obtained evidence against the undesirability of admitting same. In effect the Judge is granted the discretion of allowing or not allowing the piece of evidence obtained illegally. 

This position of Nigerian Law is traceable to the old case of Kuruma, son of Kaniu v The Queen (1955) A.C. 197 decided by the Privy Council. This case was followed in the later case of Sadau v State (1968) 1 All NLR 125. The judicial persuasion that birthed this position which is the spirit that has given birth to Sections 14 and 15 of the Evidence Act is that criminal law is addressed to all and sundry and is for the protection of society in pursuit of which the State and the citizenry are stakeholders. Therefore, incriminating relevant evidence found on an accused person by illegal means will meet the ends of justice on ground of overriding public interest for the protection of society by the State using the illegally obtained evidence to prosecute the accused whose remedy may lie in a civil action for damages against the state for the illegal search.

Put simpliciter, turn a blind eye to the illegality meted on the accused so as to save so many others (the general public).

Case Law on the Principle #

ILLEGALLY OBTAINED EVIDENCE: Appropriate time to take objection to improperly or illegally obtained evidence – ONYUIKE v. THE PEOPLE OF LAGOS STATE & ORS (2013) LPELR-24809(CA)

“I think the appropriate time to take objection to improperly or illegally obtained evidence should be at the hearing of the case when the prosecution applies to put in evidence the improperly or illegally obtained evidence. See Sections 14 and 15 of the Evidence Act, 2011, and the apt Canadian Supreme Court case of Queen v. Wray (1971) S.C.R. 272 where the majority judgment of Martland, J., with Fauteux, Abbott, Richie, and Pigeon, JJ., concurring held inter alia that the unfair methods of collecting/assembling evidence for a criminal trial should never be the basis of exclusion of such evidence from the criminal trial, if the evidence so illegally collected is material and/or of substantial weight to the case in question.” Per IKYEGH, J.C.A. (Pp. 92-93, paras. E-A).

ILLEGALLY OBTAINED EVIDENCE: Whether illegally obtained evidence which is considered relevant must be excluded from trial – DANIEL OKAFOR V STATE (2014) LPELR 24477 CA

I fully agree with my brother in the lead judgment as well as the ruling of the lower court to the effect that evidence which is relevant whether in criminal or civil trial is not excluded merely because it was illegally obtained…The concern of the Court is whether the evidence if relevant and it is not the concern of the Court how the evidence was obtained.

Cross Jurisdictional Analysis #

Clearly, the position of Nigerian Law on the issue at hand is largely exclusionary. The position is different in a number of other jurisdictions. A formidable example is the United States where the fruit of the poisonous tree doctrine applies. Ireland is also a good example of a jurisdiction that approaches this legal issue differently. Kaine Agary’s article is a good primer on this point. Click HERE to read it.

Legislative Update: There is a bill before the National Assembly to amend the Evidence Act to discredit illegally obtained evidence. You can read about it in this Vanguard Newspaper report.

Further Reading #

Illegally Obtained Evidence (https://isochukwu.com/2018/01/15/evidence-1-2-illegally-obtained-evidence/ )

Improperly obtained evidence (https://punchng.com/improperly-obtained-evidence/)

Why is illegally obtained evidence still admissible in Nigerian Courts in 2017 Source: DNL Legal and Style. View the Original Piece on  https://dnllegalandstyle.com/2017/illegally-obtained-evidence-still-admissible-nigerian-courts-2017/ )

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